Church security guards cited kissing and hugging as the “unwanted” behavior two gay men displayed before they were detained and ticketed for trespassing on a plaza near the LDS Temple, according to the police report. Spokesmen for the Church of Jesus Christ of Latter-day Saints and the Salt Lake City police department have thus far declined to specify the behavior that prompted guards to ask Matt Aune, 28, and his partner, Derek Jones, 25, to leave the plaza at 50 E. North Temple.

So, the unwanted behavior was two men kissing and hugging on Temple Square. I see absolutely nothing wrong in citing these two men for engaging in this behavior. Two men kissing within the shadow of the LDS Temple in Salt Lake City (or any other LDS Temple anywhere) is not the same as a man-woman couple hugging and kissing. It’s innappropriate for the venue. I would be offended if I saw it. I believe Church security was well within its rights to ask the two men to leave.

According to one of the men, he was physically mistreated by Church security:

Aune said that the guards “slammed him to the ground” while detaining him; a guard disputed that claim, according to the police report.

It is inconceivable that the Church security guards physically slammed anyone to the ground, particularly for the conduct described. I’ve been to Temple Square, as have millions of others, countless times. I have never been treated by anyone employed by the Church on the Square with other than the utmost courtesy. I have never, ever seen anyone employed by the Church on Temple Square treat anyone else other than with the utmost courtesy. And, if it were true, where did Mr. Anne treat immediately upon leaving Temple Square for the physical injuries which would naturally been a consequence of having been slammed to the ground? I don’t believe it. In my view, Mr. Anne is lying.

Aune and Jones said they have seen heterosexual couples holding hands and kissing without incident on the plaza. Church spokeswoman Kim Farah has said the Aune and Jones were not singled out for being gay and that they were “politely asked to stop engaging in inappropriate behavior.”

So? As I have said before: There is a big difference between hetrosexual couples holding hands and kissing on Temple Square and the Plaza, and two men holding hands, hugging and kissing at the same location. Are Anne and Jones suggesting that as a gay couple they have some legal rights superior and paramount to the Church’s rights to prohibit this conduct? Why point out what hetrosexual couples do, if they did not think they were above the rules and regulations the Church has set out for conduct on Temple Square and the Plaza.

Kim Farah’s disclosure that the two men were not singled out and were politely asked to leave is most likely exaclty what happened. Politely approaching and asking people to refrain from certain conduct is much more in line with what I have seen on Temple Square by Church employees.

However, the police report does not indicate the men were given the option to stay if they stopped kissing or hugging. It states only that the guard told the men that “they need to leave [church] property for the behavior and that [it] is unwanted,” and that the men were detained when Jones said he would not leave.

Why should these two men be given any option to stay? It is clear from their response and the earlier reports they had absolutely no intention of cooperating and leaving quitely. Rather, they became confrontational and verbally abusive and profane to Church security. It was Jones who provoked the confrontation–NOT Church security officers.

The Tribune concluded with:

The men’s detention reignited controversies over the church’s efforts against gay marriage and the city’s sale of the plaza to the church 10 years ago. The city had kept a public easement on the pedestrian thoroughfare but later gave it up, allowing the church to control activities on the plaza. Sunbathing and protesting now are banned. Scores of demonstrators staged a “kiss in” to support Aune and Jones on Sunday morning near the plaza.

I hope the actual report surfaces for all to see exactly what it says without any media filters or spin. [Note, the report is now posted online at the Tribune]Everyone can then read it and come to their own conclusions from the actual report. Even based on the Tribune’s account of the report, I think Church security has been exonorated. It’s abundantly clear the two men who engaged in the unwanted conduct provoked the confrontation, and did so in an effort to generate negative publicity about the Church. Jones and Anne were wrong. Church security should have asked them to leave. They did so in an appropriate manner. The entire matter escalated as a direct result of the obnoxious behavior of Anne and Jones.

UPDATE 10:13 p.m.

The actual report is now linked on the Tribune website. The all important narrative is reproduced below:

Call came in on trespassers at the above address. I arrived and saw both AP’s in custody for trespassing. Nickel said that he observed Matt and Derek kissing and hugging on their property. Nickel told both AP’s that he is with Church Security and that they need to leave their property for the behavior and that is is unwanted. That is when Derek refused to leave and said “NO, I am not leaving”.

Other Church Security came and detained both AP’s for trespassing and then called PD. When I made contact with Matt I asked for his name and he would not give me his name. I then told him that by law he needs to give me his name and DOB. He then game me his name. He told me that the Security Guards slammed him to the ground. I asked him why they did that? He told that him and his boyfriend Derek had been drinking at the Gallavin Center and they just came through Main St. He said they sat down and he gave Derek a kiss. That is when he was contacted by two guys in suits.

He said that he did not know they were Church Security and that he said nobody has the right to tell them to leave on public grounds. He said once he found out that they were Church Security, he told them “NO” that he was not going to leave and to call the Police.

I asked Nickel if they slammed him to the ground ? Nickel said they did not slam him to the ground when they put handcuffs on him. I told Matt and Derek that it is private property and that he will be

issued a citation because he was asked to leave and he told them “No”. Matt and Derek were both issued citations for trespassing.

I did not see any signs of injury on either AP’s. I could smell alcohol on Matt’s breath and he speech was slightly slurred when he spoke to me.

Call came in on trespassers at the above address. I arrived and saw both AP’s in custody for trespassing. Nickel said that he observed Matt and Derek kissing and hugging on their property. Nickel told both AP’s that he is with Church Security and that they need to leave their property for the behavior and that is is unwanted. That is when Derek refused to leave and said “NO, I am not leaving”.

Other Church Security came and detained both AP’s for trespassing and then called PD. When I made contact with Matt I asked for his name and he would not give me his name. I then told him that by law he needs to give me his name and DOB. He then game me his name. He told me that the Security Guards slammed him to the ground. I asked him why they did that? He told that him and his boyfriend Derek had been drinking at the Gallavin Center and they just came through Main St. He said they sat down and he gave Derek a kiss. That is when he was contacted by two guys in suits.

He said that he did not know they were Church Security and that he said nobody has the right to tell them to leave on public grounds. He said once he found out that they were Church Security, he told them “NO” that he was not going to leave and to call the Police.

I asked Nickel if they slammed him to the ground ? Nickel said they did not slam him to the ground when they put handcuffs on him. I told Matt and Derek that it is private property and that he will be issued a citation because he was asked to leave and he told them “No”. Matt and Derek were both issued citations for trespassing.

I did not see any signs of injury on either AP’s. I could smell alcohol on Matt’s breath and he speech was slightly slurred when he spoke to me.

Very interesting factual details emerge from the actual report:

1. SLCPD arrived on scene after being called by Church security;

2. Church security officer did observe the two men hugging and kissing on Church property;

3. One of the men, Derek, when informed he was on private property and asked to leave, refused saying No;

4. An additional Church security officer arrived to assist the first officer;

5. When asked by SLCPD his name, Matt initially refused to provide his name to an actual law enforcement officer;

6. Matt told the SLCPD officer he and his “boyfriend” had been drinking at the Gallavin Center;

7. They sat down on the Plaza, now LDS Church property, and gave Derek a kiss;

8. At this point Church security arrives and asks both men to leave;

9. Once identified as Church security, Matt told them that he would not leave as he had been asked;

10. Church security denied having slammed the men to the ground while handcuffing them;

11. Both men were issued tresspassing citations by SLCPD;

12. SLCPD observed no injuries to either man, despite their claim of having been slammed to the ground;

13. SLCPD officer could smell alcohol on Matt’s breath and detected some sluring of speech.

So, there you have it. Facts contained in the police report completely exonerating Church security and contradicting the intial media reports and claims that the men were slammed to the ground and were simply walking innocently through the Plaza. We also find out that at least one of the men had been drinking and showed objective signs of possible intoxication. There you have it.

“It is inconceivable that the Church security guards physically slammed anyone to the ground, particularly for the conduct described.”

Because nobody would ever be physically aggressive against gay people. That never happens.

I actually do not think that anyone was “slammed” to the ground, though I am sure that things likely got aggressive on both side (given the nature of the situation). However, to argue that this must be false because the security have always seemed nice to you is sort of silly.

Your use “inconceivable” in this sentence made me think of the movie The Princess Bride.

A lot is being made about this incident occurring on private property, but how much of a legal defense is that anymore? Suppose the private property in question were a restaurant, and the manager asked a homosexual couple to stop kissing or leave. Pointing to a heterosexual couple kissing in another booth, one of the homosexuals says “What about them?” The manager says “In this restaurant, we’re fine with that, we just don’t want to see homosexuals doing the same.”

My guess is that in several states, the restaurant would be on the losing end of some kind of legal action regarding discrimination. I don’t know that it would make any difference whether the venue were a restaurant, or a kind of park owned by a church and enjoyed by the public. Wasn’t there a case very much like that recently? Some Church that rented out a pavilion for weddings, and was told by government authority that either they had to also rent it for ceremonies for homosexuals or stop renting it to anyone?

As for the LDS Church, a relative from California’s Bay Area told me that the grounds of the Oakland Temple have been a popular spot for wedding photography by non-LDS couples because it’s a lovely place. Would California’s anti-discrimination laws prohibit the LDS Church from discriminating what sort of couples it allows to use its grounds for photos?

I’m suggesting this particular individual in this particular circumstance did think he was above the law–it’s pretty clear from the SLCPD report. I tend to believe the SLCPD and Church security on this one.

Geoff B #3

Thanks Geoff

Chris #4

Because nobody would ever be physically aggressive against gay people. That never happens.

I never said that or even remotely suggested it. I’ll take false assumptions for $200 Alex :-)

I actually do not think that anyone was “slammed” to the ground, though I am sure that things likely got aggressive on both side (given the nature of the situation). However, to argue that this must be false because the security have always seemed nice to you is sort of silly.

Well, Chris that was a big part of the hoopla surrounding this incident and the claim by at least one of these individuals. I can’t read Dr. Garrott’s mind; but, my sense from his comments is that it was this allegation that may have prompted some of his comments (this of course is an assumption on my part–maybe false–so correct me if need be).

Look, I’ll give you that Church security at one time was a pretty rough crowd–but Bro. Rockwell is no longer in charge and has long since left the post. I stand by “inconceiveable” and do so because it is inconceiveable that under these facts, this location, and this type of circumstance–it would make absolutely no sense for Church security to act by physically manhandling someone.

I have no doubt that in the appropriate circumstance Church security would and could become as physical as necessary, i.e. someone storming the pulpit during general conference (think Sonia Johnson’s era) or someone in danger of physical harm on Church property. That didn’t happen here. It’s not just my personal experience that makes me think this. It’s also all the surrounding circumstances. Temple Square is a pretty spectacular location, and I’m pretty certain the Church takes as much care as possible to ensure all who visit have a good time to the extent possible.

John #5 I’ve got to literally run at the moment, but do want to engage some of your ideas–you make some good points. I’ll be back. Thanks for the comments.

Right. Because “nice, polite” Mormons would NEVER have pent up rage or anger that they then bestowed upon some homosexuals. No way would a Mormon ever snap under the cult-like behaviors of the LDS church.

I love Temple Square. I was sealed there eleven years ago this summer. No wonder my wife didn’t want to makeout between the pictures, she knew it was against the rules (just kidding, she is just PDA averse…..though she is often also averse to private displays of affection).

Not sure how Luke Garrott worked back into this. You mention the Sonia Johnson era. Maybe this is a generational difference. I was in nursery during the Johnson controversy. This might be part of the reason for our difference in perspective.

Please read the story of the swim club in the Philly suburbs (of which I am familiar). Even though it is a private club and has every right to deny whoever they wish from their premises, the club will probably have to shut its doors and go out of business due to its discrimination against the black and latino children from the surrounding Philly neighborhoods.

Please explain how they can be held responsible for discrimination if it is a private club?

My guess is that in several states, the restaurant would be on the losing end of some kind of legal action regarding discrimination. I don’t know that it would make any difference whether the venue were a restaurant, or a kind of park owned by a church and enjoyed by the public. Wasn’t there a case very much like that recently? Some Church that rented out a pavilion for weddings, and was told by government authority that either they had to also rent it for ceremonies for homosexuals or stop renting it to anyone?

Sigh. It’s not John’s fault, but the amount of misinformation repeated about the New Jersey case (especially during the Prop 8 debate) is incredible — I heard this kind of assertion made repeatedly by ward members and friends.

The New Jersey case relates to a special property tax exemption for private entities that operated public facilities. The church claimed the exemption (worth about $200) for many years for its pavilion. After it told a lesbian couple that they could not use the facility for a commitment ceremony, the state property tax officials determined that the facility no longer qualified for the special exemption, and the church lost that $200 property-tax exemption. The church was not forced to shut down the pavilion; did not lose it’s general 501(c)(3) exemption; or any of the other overstated consequences often suggested. (But you probably got lots of e-mail suggesting that they did — I sure did.)

On the broader question, John, it depends on the jurisdiction. In general, restaurants cannot say that as private entities, they are exempt from antidiscrimination laws. That tactic was tried, unsuccessfully, during the Civil Rights era. If a restaurant puts up a sign, “No Blacks will be served,” they’ll be liable under the Civil Rights Act (title II) — regardless of being a private business. If you offer restaurant, hotel, or other services to the general public, you cannot discriminate on grounds prohibited under the Act.

Sexual orientation is not a protected category under federal law; there is nothing in the federal civil rights laws that prohibits different treatment of gays. However, a number of state antidiscrimination laws (including California) prohibit discrimination on the basis of sexual orientation. Utah does not. If an employer wants to fire a gay employee for being gay, keep gays out of their restaurant, or other actions, I’m not aware of a federal or state law remedy that the gay person would have.

I once saw man set up business to sell stuff on the lawn of the Relief Society building and stood there to watch what the two church security men were going to do about it. They explained — very politely and in low, friendly voices — that *this* area was private property where he could not set up shop, but that *that* nearby strip of grass was public property and he could sell there. They even offered to help the man move his stuff, and they treated his belongings as if they were valuable property, not the junk it really was, moving it carefully and arranging it neatly in the new area, helping him get settled before they moved on.

I also saw a man trying to pitch a tent on Temple Square, on the lawn between the temple and the South Visitors’ Center. The men from security were just as polite then, explaining that this was private property. The man was belligerent and argued with them, but they didn’t get rude in return. They simply insisted that he pack up his tent and go. There was no physical altercation, even though the man got right up in their faces and swore at them.

I don’t believe for a moment, that church security slammed one of these kissers to the ground or in any way physically or verbally mistreated them. I’d bet quite a lot that the guards tried to reason with them for several minutes, the way they explained and reasoned in the first two cases. It would be entirely out of training and out of character for them to get rough, unless it were a matter of self-defense. But they’re no pushovers, either, to give up and go away when someone doesn’t want to cooperate.

The Church security guard, Walter Nickel, is only 24 years old. I most definitely can believe that he slammed the guy to the ground and manhandled him. How many 24 year olds do you know that have enough experience and composure to handle such a situation in a mature manner?

Wow! I should move to where you guys live. Here in Florida you would be hard pressed to find a straight 24 year old security guard or policeman who could be trusted to handle such a situation prudently. They are still to close to the testosterone years and just getting a taste of power.

Among Mormons, men of 24 have often served two years as missionaries. The ones I am best acquainted with are returned missionaries, married with a child or two, finishing school, and working. They don’t drink or use narcotics. They’ve learned responsibility and discipline. Their “testosterone years” were spent preaching, then courting women who were not impressed by wildness. Church security guards of that age not only feel the weight of the institution they’re representing, but also need to keep their jobs to support their families and pay for school. That responsibility is not something they throw away on an obnoxious twerp making a political statement after having too much to drink.

#8 The swim club is a private club, but they have registered as a nonprofit organization. Nonprofit organizations are required to abide by federal non-discrimination regulations or else they can lose nonprofit status. If the club can be shown to have discriminated against the minority camp kids on a racial basis, they can (and should) lose their nonprofit status.

Then, by extension, you would agree that the Church should lose their non-profit status because they discriminated against a minority homosexual? If the government made homosexuality a protected class, would you support eliminating its non-profit status and, subsequently, its tax-exempt status?

Kaimi, I agree that the New Jersey case is not the best example of the threat posed to the Church if genderless marriages were legal.

In fact, Bob Jones University v. U.S. is a better example of the tactics that would be pursued against the church if genderless marriages become culturally accepted, and thus established a “public policy” supporting such unions. I can easily predict a backlash against discrimination in campus-arranged housing for instance, where heterosexual couples would be approved for married student housing, but homosexual couples would not. I don’t think it’s overstatement to suggest that there is precedent for the IRS revoking the tax exempt status for organizations if those organizations violate “public policy.”

There have also been rumblings that BYU athletics could be banned from participating in NCAA events based on “discriminatory” policies, but that is a different can of worms.

The case law on 501(c)(3) organizations losing tax exemptions over discrimination is extremely limited. There is one case (Bob Jones) of a college losing its 501(c)(3) status for discrimination against Blacks. The case was very clear that that could happen only if the discrimination was against public policy such that it outweighed the benefit to society of the organization, a high standard to meet.

There is no case law of which I’m aware in which an organization that qualified for a religious exemption under 501(c)(3) ever had its tax status affected by discrimination. (The Bob Jones case was for an education exemption, not a religion exemption.)

The church (and many other churches) have ordained only male ministers for many decades, and this has never caused tax problems. And gender _is_ a protected class under federal law (and sexual orientation is not).

The bottom line is that it would take a series of several significant changes to existing law for the church to lose its status as an exempt religious organization under 501(c)(3) for discriminating against gays and lesbians.

Flag this as another reason why I will probably never go to Utah again. The legal aspect doesn’t matter to me. The message sent is what matters to me. Gays are unwelcome in LDS settings. Gays must not be gays in an LDS environment. They must close that aspect of their lives and pretend to be straight.

2. Extension of the Bob Jones rule on 501(c)(3) educational organizations, to include religious organizations as well;

3. A ruling that discriminating against gays and lesbians meets the demanding Bob Jones standard (cannot violate the rule that the organization an organization “must serve a public purpose and not be contrary to
established public policy” and “must . . . be in harmony with the public interest, and the institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.”) (remember, this is a demanding standard — the church has decades of male-only ordinations, post Civil Rights Act, and nary a peep from the IRS about it, and gender _is_ a protected category); and

4. Surviving the inevitable RFRA / First Amendment challenge to any tax ruling along those lines.

_If_ all of those things happened, then _maybe_ the church could lose its 501(c)(3) over its policies on gays and lesbians.

And frankly, if steps 2+3+4 happened, the church would probably lose its 501(c)(3) anyway, because of failure to ordain women. So would Catholics. And there is no way that the IRS — a cautious organization, under the executive branch — would want to create that kind of political firestorm.

Kaimi, thank you for the thorough response. I have a question and a clarification, if you don’t mind (apologies to Guy for the threadjack).

First, do you really think a statute would be required to make sexual orientation a protected class? We have Supreme Court justices who are more than willing to define “public policy” based on a critical mass of states passing certain laws(I’m thinking of death penalty cases in particular, although the specific opinions aren’t top of mind right now). Would it be that much of a stretch to believe that if 30 states recognized “gay marriage”, the Supreme Court could interpret that as the emergence of “public policy” and interpret laws accordingly.

Also, given the fact that President Obama indicated in his campaign he would support a repeal of DOMA, if our country had fewer economic worries, a federal statute repealing DOMA and in fact swinging the other direction isn’t that unlikely.

Finally, I realize that in my comment I didn’t make explicit my belief that if such anti-discrimination challenges were to take place, the Church owned universities would be the likely target. So steps 2,3, and 4 don’t strictly apply to my example.

Daniel, I think you are overreacting in your suggestion that “pretending to be straight” = “refrain from public displays of drunken affection.” If the two men involved had walked through the plaza simply talking about their evening and enjoying each other’s presence and company, would that have made them less gay? Or, are you suggesting that the physical act of hugging and kissing one another defines them as “gay,” and the security guards were repressing this innate expression of who they are?

I think had they not “sat down” and began hugging and kissing (which I interpret as a make out session) they would have been as welcome as any other visitor on the plaza. I also think that if a heterosexual couple had sat down and began hugging and kissing (i.e., “making out”) the same security guards would have asked them to move along also.

So, again, I fail to see where they were unwelcome as gays or told they must not be gay.

Yes, the church has the legal right to kick people off private property, but the most troubling aspect of this whole thing is the church’s statement that they were “asked to stop engaging in inappropriate behavior just as any other couple would have been.” That is just false, as straight couples kiss on that property all the time. Again, legally there’s no problem here, but this statement seems deceptive. That’s just me. Thanks for all the analysis though, it’s good to get all the details out there.

Kaimi, you keep focusing on federal non-profit status, as though that’s the only thing a person could care about. If this SLC Main Street Plaza thing had happened on the Oakland Temple grounds, a place we make a point of being welcoming to visitors, would the LDS Church be in violation of California’s anti-discrimination laws?

Suppose the private property in question were a restaurant, and the manager asked a homosexual couple to stop kissing or leave. Pointing to a heterosexual couple kissing in another booth, one of the homosexuals says “What about them?” The manager says “In this restaurant, we’re fine with that, we just don’t want to see homosexuals doing the same.”

As Kaimi has touched on this briefly, the CA law governing these situations is known as the Unruh Civil Rights Act, which you can find in CA Civil Code section 51 which you can scroll down and read if you want; but the core of the law states in part:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

The critical determination is what is a business establishment? In your question, the restaurant would likely be deemed a business establishement; but, the courts are really all over the place on this question. See some history here., i.e., Boy Scouts at the lower court levels were a business establishment, but not at the CA Supreme Court level. But, the Boy’s Clubs were deemed a business establishment.

As to your hypothetical on the Oakland Temple–I’d say there are no guarantees. I believe it is a very real possibility that the LGBT community will continue to pursue previously untested litigation limits to achieve their ends of complete societal acceptance. Also keep in mind that the Boy Scout’s case was decided before the CA Supreme Court invented a new Constitutionally protected class, i.e., those who have a same gender sexual orientation (however that might be determined as opposed to say the protected class of racial makeup or gender and the like). What that means is that with sexual preference a constitutionally suspect class, it is entitled higher judicial scrutiny, or protection. My prediction is all bets are off now that the LGBT community has new constitutional weaponry in their arsenal.

Just presuming that perhaps some of his comments may have been based on claims by the two men having been discriminated against, rather than what actually appears to have happened. No big deal.

You mention the Sonia Johnson era. Maybe this is a generational difference. I was in nursery during the Johnson controversy. This might be part of the reason for our difference in perspective.

Well, it was just an example of how Church security might be pressed into more physical confrontations. I don’t think anyway was physically attacked when she and others crashed General Conference; but, the possibility was there. And, I’m sure Church security is well able to protect those whom they are hired to protect.

Michael #8

Please explain how they can be held responsible for discrimination if it is a private club?

I can’t really explain PA law; but, if they have statutes like CA’s to which I linked above, that is how they can ban private business establishments from discriminating.

Kaimi #9

Sexual orientation is not a protected category under federal law; there is nothing in the federal civil rights laws that prohibits different treatment of gays. However, a number of state antidiscrimination laws (including California) prohibit discrimination on the basis of sexual orientation. Utah does not. If an employer wants to fire a gay employee for being gay, keep gays out of their restaurant, or other actions, I’m not aware of a federal or state law remedy that the gay person would have.

This is true for the time being; however, we both know that the Prop. 8 federal challenge seeks to create a protected class for sexual orientation on the federal level. My guess is that the current makeup of the U.S. Supreme Court will decline to so find–though who knows how the district and appellate courts might rule. What’s your take?

Ardis #10

I don’t believe for a moment, that church security slammed one of these kissers to the ground or in any way physically or verbally mistreated them. I’d bet quite a lot that the guards tried to reason with them for several minutes, the way they explained and reasoned in the first two cases. It would be entirely out of training and out of character for them to get rough, unless it were a matter of self-defense. But they’re no pushovers, either, to give up and go away when someone doesn’t want to cooperate.

Your belief, I think, is well grounded in facts, based on what we now know from the SLCPD report on this incident. Thanks for sharing your experiences on Temple Square in your various comments–very enlightening. I know you have spent a great deal of time on the Square.

Michael #11

The Church security guard, Walter Nickel, is only 24 years old. I most definitely can believe that he slammed the guy to the ground and manhandled him. How many 24 year olds do you know that have enough experience and composure to handle such a situation in a mature manner?

You can believe what you want; but, your belief as stated here has no basis in fact or reality. You might as well believe the moon is made of green cheese. I think Ardis’ responses to you in #’s 10, 12, and 15 are more than adequate.
Chris #13

If as you suggest that is what has happened, there likely will be consequences.

Peter #18

If the government made homosexuality a protected class, would you support eliminating its non-profit status and, subsequently, its tax-exempt status?

Not sure this would happen (See Kaimi’s explanation below); but, who knows. And, I’m certain there are those who would argue this.

Bull Moose #19

There have also been rumblings that BYU athletics could be banned from participating in NCAA events based on “discriminatory” policies, but that is a different can of worms.

I say BYU may eventually be a target at some point–the athletics scenario you suggest has some interesting aspects.

Dan #21

Flag this as another reason why I will probably never go to Utah again. The legal aspect doesn’t matter to me. The message sent is what matters to me. Gays are unwelcome in LDS settings. Gays must not be gays in an LDS environment. They must close that aspect of their lives and pretend to be straight.

I take it Dan, you either did not actually read the report, or simply are ignoring the facts contained therein.

Kaimi #22

Nice analysis–and I agree highly unlikely.

Bull Moose #23

if you don’t mind (apologies to Guy for the threadjack).

Not at all. It’s an interesting discussion.

First, do you really think a statute would be required to make sexual orientation a protected class?

CA’s example is that clearly we do not need a statute; but, the vast majority of state courts which have considered this question have specifically stated that the legislature is the branch where such public policy should take place. I do think the Federal judiciary will be less likely to follow the CA supreme court example. CA’s court literally made up out of whole cloth a new fundamental right to genderless marriage and also the new constitutionally protected class of sexual orientation–whatever that means.

#24 Ditto.

#25 Austin Smith

Yes, the church has the legal right to kick people off private property, but the most troubling aspect of this whole thing is the church’s statement that they were “asked to stop engaging in inappropriate behavior just as any other couple would have been.” That is just false, as straight couples kiss on that property all the time.

So you’re suggesting there is no difference at all in your mind between a man and woman kissing outside the Temple front door and two men doing the exact same thing? Really?

Seth #27

And I guarantee you if I went down to Main Street Plaza with my wife and started having a full-on makeout session, I would be asked to leave.

Seth, I think you’d be asked to leave period–just because you’re such a colorful bloggernacle character.

#28 John Mansfield

If this SLC Main Street Plaza thing had happened on the Oakland Temple grounds, a place we make a point of being welcoming to visitors, would the LDS Church be in violation of California’s anti-discrimination laws?

Again, I think all bets are off now that we have a new suspect class. Sexual orientation is now more protected than just its statutory protections in the Unruh Civil Right’s Act.

I mean, what, do you actually think the security guards came over to this gay couple because they thought they were drunk? You quote from the piece:

Church security guards cited kissing and hugging as the “unwanted” behavior two gay men displayed before they were detained and ticketed for trespassing on a plaza near the LDS Temple

Why would you and Geoff talk about alcohol they had drunk when that is not the reason the security guards give for asking these two men to leave the property? The report clearly states that the church security guards “cited kissing and hugging” as the reason. Kissing and hugging between two men.

People seem to have a fundamental disagreement about the factual nature of the kiss (which is not really answered by the police report).

The police report notes only that “Church security officer did observe the two men hugging and kissing on Church property.” No further description of the kiss is given.

Here and at other sites, further description is given in one direction or another. Critics of the church’s actions characterize the couple’s actions as a quick kiss on the cheek. Some supporters of the church’s actions use language such as making out.

I think that there is a difference between the two. I think it is quite possible that a heterosexual couple making out would be asked to leave as well.

John M writes:

“Kaimi, you keep focusing on federal non-profit status, as though that’s the only thing a person could care about.”

Err — you mean in my comment 20 (and the follow up in 22), where I responded to Bull Moose’s 19 (which was directed at me) that raised questions about Bob Jones and federal status? I’m curious as to how you think I should have responded to Bull Moose’s comment about federal status, without focusing on federal status.

I’m happy to discuss state law when relevant. My comment #9 makes that clear, doesn’t it? And you know that I’ve posted extensive state law discussion about Prop 8 in the bloggernacle.

John writes:

“If this SLC Main Street Plaza thing had happened on the Oakland Temple grounds, a place we make a point of being welcoming to visitors, would the LDS Church be in violation of California’s anti-discrimination laws?”

Good question. As Guy mentions, it depends on whether the church is a business or not. (See his link for case law on this regarding the Boy Scouts.) If they’re a business, then they can’t discriminate against gays on their property.

But frankly, if they’re a business, that’s the least of their problems. They’re also in major trouble under state antidiscrimination law for gender discrimination in hiring and promotion, and that would be a much bigger problem.

Guy writes:

“So you’re suggesting there is no difference at all in your mind between a man and woman kissing outside the Temple front door and two men doing the exact same thing? Really?”

I think it’s quite possible (even likely) that two different standards exist. That is, that

1. Both gay and straight couples will be asked not to make out;
2. That straight couples could probably engage in much lighter PDA (handholding, hugging, quick light kissing) without being asked to leave;
3. That gay couples could not engage in light PDA, either.

I would be very surprised if a straight couple were asked to leave over a quick kiss, while I would not be surprised if a gay couple were.

So I think it’s quite likely that there is a policy which treats the two differently. I also think that as a general matter, this is legal under both state and federal law.

(There is a wrinkle with the public nature of the easement, and an argument can be made that this is like public property and should be treated that way.)

Guy writes:

” we both know that the Prop. 8 federal challenge seeks to create a protected class for sexual orientation on the federal level. My guess is that the current makeup of the U.S. Supreme Court will decline to so find–though who knows how the district and appellate courts might rule. What’s your take?”

My take is that there’s no way that this succeeds in federal court. Well, with the perfect appellate panel, maybe you get a ruling, but that absolutely gets overturned at the SCOTUS level — and it’s highly likely that it loses at all levels. Really, there’s no federal statute here, and the Supreme Court has repeatedly declined to make sexual orientation a protected class for EQP purposes, so there is no legal claim.

It’s a publicity stunt, and not a good one. (And I have several friends and colleagues who are strong supporters of gay rights and who are furious about the lawsuit.)

Bull Moose asks:

“First, do you really think a statute would be required to make sexual orientation a protected class? We have Supreme Court justices who are more than willing to define “public policy” based on a critical mass of states passing certain laws(I’m thinking of death penalty cases in particular, although the specific opinions aren’t top of mind right now). Would it be that much of a stretch to believe that if 30 states recognized “gay marriage”, the Supreme Court could interpret that as the emergence of “public policy” and interpret laws accordingly.”

That seems possible. So far, protected class under federal law has been a relatively limited set. It’s always possible that it could be expanded (and advocates like Evan Wolfson have argued strongly in favor of expansion).

I think that, post-Lawrence, sexual orientation is in a class by itself — it technically receives Rational Basis review, but actually gets a standard that is perhaps not quite as demanding as normal RB review (but is still very high, much more so than Strict or formal Intermediate Scrutiny.)

“Also, given the fact that President Obama indicated in his campaign he would support a repeal of DOMA, if our country had fewer economic worries, a federal statute repealing DOMA and in fact swinging the other direction isn’t that unlikely.”

I think it’s reasonably likely that President Obama will act to repeal DOMA in the next few years. One potential consequence of this could be that it is eventually used as cumulative evidence by a court finding a fundamental right. A lot would need to happen between points A and B, but yes, it could be a relevant piece of evidence.

“Finally, I realize that in my comment I didn’t make explicit my belief that if such anti-discrimination challenges were to take place, the Church owned universities would be the likely target. So steps 2,3, and 4 don’t strictly apply to my example.”

I think that universities would be much easier targets than the church as an entity. (Though it’s still not happening without changes to the law.)

One interesting wrinkle has been the New Hampshire statute and explicit conscience-protection carve-outs. I think that that is likely to be the wave of the future. It doesn’t fully satisfy everyone on either side, but it is a nice compromise.

First, the expertise you have developed in this area is useful for all of us as you share it. Second, you’re right: tax status issues are of great interest to many people and were raised in several comments. It was only part of the concerns generally, but it was part, and so it is great to have someone write knowledgeably on the matter. (By the way, if NPR’s reporting is accurate, the New Jersey pavilion tax was around $20,000, not $200, which makes sense. What kind of pavilion would only have a $200 property tax?)

A type of argument that comes up with these matters is to disect everything into tiny pieces and show that none of the pieces individually amount to much, and those who put some pieces together along with the concern that laws over the next 20 years could change as much as over the last 20 are slurred as fear-mongers obsessing over imaginary slippery slopes. For example, you calm us all down that the Prop. 8 federal case is nothing to give any worries, and you note that other any-sex marriage advocates are furious about that group’s actions. Why are they furious? Because they disagree with the objective, or because they think it’s a bad strategy for accomplishing the objective and will obstruct methods with more potential?

It depends on what you’re asking about, John. You ask as someone opposed to SSM. But the examples you give — kissing in a restaurant, tax exemptions for pavilions — need not be tied to marriage status at all. (Remember, New Jersey — the pavilion state — is not a same-sex marriage state). Those are antidiscrimination law claims.

This is a common pattern — people ask about same-sex marriage, but when citing to the harms, they pull up instances of antidiscrimination law. (The confusion is fostered by organizations like NOM, which run ads that talk about marriage while citing to antidiscrimination law cases. This is misleading.)

These two are not the same thing. California’s Unruh Act is not the same as the Marriage Cases decision. Prop 8 overturned Marriage Cases (on the right to marry), but does not affect Unruh.

So, I’m not quite sure what it is that you’re asking about — marriage, or antidiscrimination laws.

I think that antidiscrimination laws in general should have reasonable protections for religious organizations built into them. That does seem to be the broad, general trend, but there are a lot of data points.

As far as marriage laws, as I noted above, I think that the New Hampshire model is the wave of the future. Marriage laws with explicit religious carve-outs remove many of the stated objections. (The church made a number of specific legal claims regarding Prop 8’s legal effects.)

I think that smart and reasonable SSM advocates see the demographic writing on the wall. They want to bring a new ballot amendment, in 2012, with explicit conscience protections built in. This will eliminate some of the most effective arguments that were used in the Prop 8 debate (about school curriculum and taxes and such). In the mean time, the demographics will also shift. There was a nine-point drop between Prop 22 in 2000 and Prop 8 in 2008 and Prop 8 was especially well supported by elderly voters (and strongly disfavored by younger voters); it’s likely that by 2012, a counter-Prop-8 proposition will pass.

This will have the benefit of being passed in a democratically unobjectionable way; it will protect religious organizations from the legal effects which they have stated that concern them; and it will give same-sex couples the right to marry. That’s the best SSM option for long-term stability, and advocates know it. This is why smart advocates dislike the idea of another court stepping in and further muddying the waters.

That’s a good point that marriage is the banner issue, but people on both sides care about many things besides marriage. These things are intertwined, though—not much chance of considering discrimation between kissing couples according to the sex composition of the couples on one hand, and DOMA and Prop. 8 on the other hand, as if they were completely separate issues with no bearing one on the other.

As to the various factul disputes in this story (i.e., the nature of the PDA, the behavior of the security guards, etc.), would not there be security videotape? I have heard one media source say that one of the trespassers has suggested that these tapes (if they exist) be viewed to corroborate the various elements of his story. I tend to believe the church’s version of the events, but the suggestion by the trespasser that we view the tapes makes me wonder . . .

Once again you’re beyond the report. The report stated the kissing and hugging. Not the belligerence, nor groping, nor drunkenness. The report states very clearly: kissing and hugging. Why do you expound beyond what was reported?

Seth, I can’t speak for anyone else, but have you seen me downplay what the original report said? From the actual report:

Nickel said that he observed Matt and Derek kissing and hugging on their property.

Kissing and hugging. That’s what started it. Whatever belligerence occurred after is inconsequential. What set off those Church security guards was “kissing and hugging.” Have I in any of my comments downplayed what was written in the report?

Now, Seth, let’s take for comparison, the church’s statement, which they released, which Guy quotes in his newer post:

They engaged in passionate kissing, groping, profane and lewd language, and had obviously been using alcohol.

Compare that with the report filed by the police, which I quoted in my last comment:

Nickel said that he observed Matt and Derek kissing and hugging on their property.

The original report does not state “passionate kissing, groping, profane and lewd language” as the reason the security guard came over to ask the two men to leave. The report states that Nickel observed Matt and Derek kissing and hugging on their property. Now maybe Nickel revised his statement after the fact. That ought to raise some questions. The church statement, however, goes beyond what the police report indicates. And that is understandable. The church is trying to send a message. Such action is not tolerated on its property, and gays are not welcome.

Would you have preferred the security guard give a more lurid description to the police.

I’ve been monitoring the online news traffic on this story. With the exception of the Salt Lake Tribune’s official reports and local TV news, the VAST majority of online discourse is painting this as a “quick peck on the cheek.”

Perhaps it is this warped account that the LDS Newsroom is compensating for?

I prefer the security guard to state what he sees, nothing more, nothing less. The actual report states that the guard went over to the gay couple because of “kissing and hugging.” Anything that occurred after the guard went over there doesn’t matter. What set the guard in motion, according to the guard, is “kissing and hugging.”

The LDS Newsroom ought not to compensate one side attempting to diminish what happened by embellishing what happened. Stick to the facts in the case. I hope they release any video they have of the incident, because then we can see for ourselves what really occurred.

For the time being, I don’t go by what anyone but the security guard says got him on his feet, walking over to the couple and asking them to stop. He said: “kissing and hugging.”

Why do you keep focusing on the words “kissing and hugging”? The fact that those were the words used in the police report only suggests that that is what the officers and/or security guards stated at the initial incident. That the Church issued report was more detailed is nothing more than the added time frame and gathering of information. For example, when an officer takes a report of an accident, one driver may simply say the other driver ‘ran a red light and hit me’. After further interviews, there may be several other details that come to light; however that doesn’t make them incorrect because they were not in the initial statement. By continuing to focus on “kissing and hugging” you’re implying that nothing else could have been happening, when in reality, maybe it just wasn’t immediately recorded.
“He said: “kissing and hugging”, He said kissing and hugging”! Makes me think of a 5 year old clenching his fists and stomping his feet.

“Two men kissing within the shadow of the LDS Temple in Salt Lake City (or any other LDS Temple anywhere) is not the same as a man-woman couple hugging and kissing. It’s innappropriate for the venue. I would be offended if I saw it.”

Of course you would, bigot.

“I have never been treated by anyone employed by the Church on the Square with other than the utmost courtesy.”

You are straight.

“It is inconceivable that the Church security guards physically slammed anyone to the ground, particularly for the conduct described.”

Really? Rent-a-cops aren’t usually known or hired for their intellect and even-dispositions. And why do they have handcuffs?

The later more descriptive reports, are they official police reports? Because I honestly don’t trust the church’s report on this matter. I haven’t seen a more updated police report indicating the additional language that the church uses in its statement. The original police report (still the only one that I’ve seen) indicated no groping. Simply kissing and hugging. The only reason I want to see a police report is because the police, in this matter, are fairly neutral. The church, seeing its position on gay issues, is not.

Brother/Mr./alternate title/Murray; you’ve made your disdain for gay people painfully clear through this blog of yours; why the sudden reticence? From previous posts, it seems fair to assume that you would totally support the church security throwing out a gay couple; it’s within their rights. They can throw out anyone. So why the coyness?

55: Rent-a-cops aren’t usually known or hired for their intellect and even-dispositions.

Who’s the bigot now?

Officers in the church security department are so far from being rent-a-cops that I don’t even know where to start. You obviously know zilch about their training, mission, experience, temperament, or purpose.

I would far rather call church security than the city police of any place I’ve ever lived, if I had that option. My preference for church security starts precisely with their “even dispositions” — unlike city police or highway patrol or any other civil law enforcement, who approach every citizen as if we were potentially violent criminals, church security offices approach everyone — even drunks, even those obviously seeking notoriety, everyone — as if they were reasonable, rational, courteous human beings who will choose to do what is right once the problem is politely explained to them.

You don’t like commenters here falling back on stereotypes of gays? Don’t show your own bigotry by assuming that church security officers are the barely employable thugs that you characterize as rent-a-cops.

I do really want to know what happened. Maybe it’s how biased Guy shows himself to be in these posts that gets me so defensive toward the two guys. In his eyes, and yours, they are guilty through and through, and for me, far away from the scene and also further away from the heat of the Gays V LDS Church battle, it just doesn’t look that clear cut.

And by what evidence do you judge that I “don’t like gays”? My simple participation on this thread, where many different attitudes toward homosexuality are expressed? By what measure do you determine MY stand? You simply can’t justify your statements — any of them — without resorting to hyperbole and stereotype. Get a clue, man.

Guilty of what? No one disputes they are guilty of trespassing. It seems clear to me that they were also guilty of being disrespectful to the security personnel and disrespectful of the church by choosing to stop where they did to passionately hug and kiss.

Now admittedly I personally suspect these two guys were also guilty of being obnoxious drunk douchebags that night but that is only speculation on my part. I am open to the idea that these two aren’t total dillweeds — especially when they aren’t drunk.

far away from the scene and also further away from the heat of the Gays V LDS Church battle

One need not live in Utah to be quick to attack and criticize the church over its positions (as your comments here like #21 clearly demonstrate).

comment #21 doesn’t criticize the church but rather Mormon culture, particularly in Utah.

As for guilt, we’re not talking about trespassing, and no one, i think, is disputing that. The guilt we’re talking about is their action that caused the security guard to approach them. The guard notes in the official police report that the two men were kissing and hugging. Now, if this is true then trespassing on church property in Utah consists of:

1. Two men kissing and hugging.

That is a warrantable offense for getting asked to leave church property. If it is true that it is not just “two men” “kissing and hugging” that warrants the boot, but rather “kissing and hugging” then I expect to see more reports coming out of this same area when heterosexual couples do the same thing. Is that a reasonable assumption to make? If a man and a woman were kissing and hugging with the same intensity that the two men were, am I right that the security guard would walk up to them and ask them to leave? If that is the case, then I have no problem with the church’s position. Their position would therefore be that no undue public displays of affection are allowed on their property, whether hetero or homo. My gut feeling tells me this is not the case. I can’t prove it as I’ve not researched it, nor been in this area of Salt Lake to test the theory out. My gut feeling tells me the security guard felt uncomfortable seeing two men kiss and hug, and walked over to them asking them to leave. My gut feeling tells me that the security guard has seen numerous heterosexual couples perform somewhat similar PDAs in that same area but because he was comfortable seeing heterosexuals kiss and hug, didn’t bother to care, whether that was the rule or not.

I think the church would be well served to release two things.

1. The video of the incident if there is any

2. The rules the church gives to all its security guards related to PDAs.

If it appears, on investigation, that the church is well balanced in asking any and all PDAers to leave, then I’m perfectly fine with things. If it appears on investigation that the church is biased against gays, then my original statement stands: gays are not welcome in LDS settings.

At what point are we all making too much of this? Everyone from the guards to the gay couple have be painted in over exaggerated terms. Your a bigot. No, your the bigot. I called you a bigot first. Well, your mom is a bigot. It is all so counter-productive. I look forward to the day when we can all laugh a bit more.

I was talking about the range of comments on all of these M&A posts about this issue, and not just you in particular. I share your reaction to Guy’s treatment of the issue (discussed on the earlier post). I just worry that we sometimes get too carried away. Maybe it is the nature of the issue. I hope that all is well with you.

Peter: It goes without saying — as in: you don’t have to take the trouble of saying it — that you will find fault with anything I ever say, anywhere. Usually, though, you at least trouble yourself to make a point relative to the post, not merely put me down. Why the hostility this time, pervert?

John Mansfield: “A type of argument that comes up with these matters is to dissect everything into tiny pieces and show that none of the pieces individually amount to much, and those who put some pieces together along with the concern that laws over the next 20 years could change as much as over the last 20 are slurred as fear-mongers obsessing over imaginary slippery slopes.”

That’s right on the money, John.

The only thing that must happen to get the ball rolling is for sexual orientation to become a protected class on the federal level, and whoosh! Down go all the pins.

I don’t have time to respond to all the comments, though I appreciate everyone who has commented, even if I disagree with some. Just a quick couple of points:

1. I believe the Church’s Newsroom account to be accurate. I believe Church Newsroom statements are reviewed before posting, by at least some members of the FP, Q12 and/or Q70 the highest Church governing bodies. These are comprised of men who are very bright, including some exceptional legal minds.

2. The Church is a major international religious body. I do not believe for one second they would knowingly post facts to the LDS Newsroom which were false in anyway. To suggest the Church is making false statements on its official website is to suggest its leaders who approve such statements are likewise lying to the world.

The Church is a major international religious body. I do not believe for one second they would knowingly post facts to the LDS Newsroom which were false in anyway. To suggest the Church is making false statements on its official website is to suggest its leaders who approve such statements are likewise lying to the world.

Not to mention that putting out a statement like that, if untrue, would potentially open the Church up to a libel suit. The Church’s statement is a little fuzzy over the order of these events (which events came before the couple was asked to leave and which events came after), but I don’t believe that the Church is materially misrepresenting any of the facts in this case.